Vaughn v. Ems

• Decision Date: 26 January 1988
• Docket Number: No. 52945,52945
• Citation: 744 S.W.2d 542
• Parties: Dorthia VAUGHN, Plaintiff-Appellant, v. Alfred M. EMS, et al., Defendants-Respondents. . Division Five
• Court: Missouri Court of Appeals

Page 542

744 S.W.2d 542

Dorthia VAUGHN, Plaintiff-Appellant, v. Alfred M. EMS, et al., Defendants-Respondents.

No. 52945.

Missouri Court of Appeals,

Eastern District.

Division Five.

Jan. 26, 1988.

Marsha Brady, Hillsboro, for plaintiff-appellant.

Louis Nathan Laderman, Manchester, for defendants-respondents.

SIMEONE, Senior Judge.

This is an appeal by Dorthia Ann Vaughn from a judgment of the circuit court of Jefferson County affirming a decision of the duly elected officials and members of the council of the City of Arnold which declined to renew appellant's liquor license. Appellant makes a constitutional challenge to an ordinance of the City. We have jurisdiction. Art. V, § 3, Mo. Const.; State ex rel. Payton v. City of Riverside, 640 S.W.2d 137, 139 (Mo.App.1982). We affirm.

I.

Ms. Vaughn is the owner and sole proprietor of the Span Disco Lounge located in Arnold, Missouri and has operated that lounge since July 1, 1979. She was issued an annual retail liquor by the drink license since that date. On June 9, 1986, appellant made application for renewal of her license to sell liquor by the drink for the period July 1, 1986 through June 30, 1987. Her application was referred to and reviewed by the Public Works-Health and Safety Committee on which Paul Zimmerman, a council member, served. On June 17, 1986, the members of Public Works-Health and Safety Committee met and discussed, among other matters, liquor license renewals. The minutes of the committee show that all of the establishments "on the list" with the exception of the Span Disco, Inc. were recommended by the committee for approval. The committee recommended that the Span Disco license not be renewed. The minutes referred to inter-department police memoranda relating to a number of events which occurred at the Span Disco over the years. At the meeting of the city council on June 19, 1986, Councilman Zimmerman presented the minutes, the police department's memoranda, and the recommendation of the committee to the council regarding the non-renewal of the license. He moved to deny the renewal because of "their [Span Disco] failure to keep an orderly place of business." The minutes of the council show that the motion passed unanimously.

On June 20, 1986, Ms. Vaughn was notified by certified mail that her license was not renewed. The letter read as follows:

The Span Disco, Inc. has been recommended for non-renewal of the liquor license because of their failure to keep an orderly place of business. The council feels that it is not in the best interests of the city to grant another license to the Span Disco, Inc. due to the increasing frequency and severity of the problems which have occurred at this establishment since January, 1979, and because it is likely that it will continue in the future.

On July 14, 1986, pursuant to § 536.150, R.S.Mo., Ms. Vaughn filed her "Petition For Review of Denial of Liquor License," against the mayor, members of the city council and city clerk in the circuit court of Jefferson County. She alleged that the denial to renew her license was "unlawful and invalid" in that (1) she had never been cited for violating any ordinance which prohibited disorderly conduct on her premises; (2) the denial is "wholly unauthorized" by reason of § 311.220; (3) the discretion vested in the city council by virtue of Section 3-44.1 ¹ Ordinance No. 4.2 is "unconstitutional" and (4) the denial is "unreasonable, arbitrary, capricious, and an abuse of discretion." She prayed that the court order the defendants to renew her "liquor by the drink license."

The parties entered into a joint stipulation of facts. The stipulation recited that Ms. Vaughn had been issued a liquor license since July 1, 1979; that she applied for a renewal for the period of July 1, 1986 through June 30, 1987; that she is a person of good moral character, is a qualified voter, has never had her license revoked and has never been convicted of any law applicable to the sale of liquor. The stipulation further recited that the Public Works-Health and Safety Committee considered her application for renewal and reviewed certain inter-department memoranda received by it from the chief of police with respect to the lounge and that the council, on the recommendation of the committee, denied to renew the license. The parties further agreed that Ms. Vaughn could continue to operate and transact business pending a final judicial disposition of the issues.

On January 13, 1987, a hearing was held by the trial court on the petition. At the hearing, Mr. Zimmerman testified that he reviewed the appellant's application for renewal and after examining two inter-department police memoranda, he recommended denial of the license. One inter-department memorandum was dated December 9, 1985 and the other May 29, 1986. Each listed the number of "incidents" which occurred at the lounge since January, 1979. There were eleven such incidents in 1979--ranging from a disturbance to a bomb threat; there were ten incidents in 1980; fourteen in 1981; six in 1982; sixteen in 1983; thirty-one in 1984 and thirty-five in 1985. In 1986, there were several incidents--one on February 1, 1986 involving a fight inside the lounge at which "20-25 patrons were involved." Mr. Zimmerman did not request copies of the underlying police reports before making his recommendation to the council.

At the trial court hearing, Ms. Paula Brady, secretary to the detective bureau and custodian of records, testified. She testified that she maintained "tavern files" and referred to Exhibits 9 and 10 showing a number of reports and complaints which came into the police department. These reports are prepared by a police officer, "made in the regular course of business" and "made at or near the time of the act, condition or event that's recorded." When Exhibit 9--reports and complaint cards--were sought to be admitted, counsel for appellant objected:

Your Honor, I would object to the relevancy of Exhibit 9 since these reports were not made available to the committee or the council members.

The court overruled the objection.

Exhibit 10, containing additional police reports concerning incidents other than those related in Exhibit 9, was also admitted over objection on the ground of relevancy.

Captain B.J. Nelson, an officer with some eighteen years service and assistant chief of the City of Arnold, also testified. While he was chief of detectives and as part of his responsibilities, he reported to the chief of police on violations of the liquor law. He maintained "tavern files"--"incidents that occur at any place that has a liquor license in the City of Arnold." In 1986, he examined the incidents at the Span Disco as well as other taverns, and based upon his observations, he noted that there was an "unusual amount of police activity generated," and a "large amount of serious activity occurring there." This "unusual" and "large" amount of activity took policemen away from the "patrols position" to respond to the incidents and complaints. The reports showed that there were fights on the parking lot, a police officer was assaulted, and incidents with "weapons, pool cues, knives, guns." There was also a "major fight there involving 25 people which took my whole department to handle." One incident which he recalled "vividly", which took place in front of the Span Disco and wound up on the upper parking lot, involved a family fighting with a bumper jack so that police officers had to disarm them. There had also been a shooting which occurred in front of the establishment for which one man was convicted.

The frequency of police calls were "much greater at the Span compared to other liquor establishments." In Captain Nelson's opinion the tavern presents a law enforcement problem in that there "is a large amount of fights and disturbances" which "put people in jeopardy, not only my police officers but the customers that go in there." Captain Nelson personally had been called to the tavern "maybe six times." He spoke to "Dorthia about the problems," and urged her to "try to take more control over the liquor establishment, try to keep down the trouble."

Captain Nelson did not know whether appellant was ever cited for failure to maintain an orderly place of business, but testified that the inter-department memoranda listed "these items" and in December 1985 he "went to the chief of police and asked him to take this to the city council and discuss with them whether she should be cited or not;" that it was "up to the council to decide whether to cite her or take her license or suspend her, or whatever action deemed necessary."

Following hearing in the trial court and the filing of briefs, ² the court entered its order that the decision of the council was "lawful and proper and is supported by substantial evidence." The court therefore dismissed the appellant's petition for review.

II.

On appeal, appellant contends that the trial court erred (1) in failing to find § 3-44.1 of the Arnold alcoholic beverage code "invalid because the ordinance grants unlimited discretion to the city council to grant or deny a liquor license and is subject to arbitrary enforcement," and (2) in receiving Exhibits 9 and 10 because these exhibits, comprising police reports, were not properly qualified as business records since there was no showing that the information contained in them was relayed to the reporting officer by a person with a business duty to do so.

Our review is to determine whether the trial court abused its discretion in affirming the decision of the city council. The order of the trial court is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In turn, the trial court's review of the decision of the city council to deny the renewal of the license is governed by §...